Citation Nr: 21009249
Decision Date: 02/22/21	Archive Date: 02/22/21

DOCKET NO. 17-15 430
DATE: February 22, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for peripheral vestibular disorder (claimed as vertigo) is dismissed.

Entitlement to an initial compensable rating for obstructive sleep apnea hypopnea is dismissed. 

FINDING OF FACT

On January 25, 2021, the Board was notified that the Veteran (appellant) died in January 2021, while the Veteran’s appeal to the Board was pending, and prior to the issuance of a final decision.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from October 1990 to November 1997.

These matters come before the Board of Veterans’ Appeals (Board) based on the appeal of a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  

These matters were previously before the Board in April 2020, at which time they were remanded for further development following the Veteran’s February 2020 video conference Board hearing before the undersigned Veterans Law Judge. 

Death Dismissal

Unfortunately, the appellant died during the pendency of the appeal.  As a matter of law, appellants’ claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106.

The Board’s dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant’s death.  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  A person eligible for substitution includes “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ….”  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b).

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J.B. King, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.